Thursday, June 27, 2013

GOODBY AMERICA, I BARELY KNEW THEE!

Chief
Justice John Roberts has done it again. His twisted reasoning in last
year’s Obamacare ruling wasn’t the only unpleasant surprise he’s sprung
on supporters of the rule of law.

His majority 5-to-4
opinion in California’s Proposition 8 case — throwing the issue back to
California because plaintiffs lacked standing to argue in his court — is
as bizarre as his Obamacare decision. His opinion was joined by an
ideological tossed salad of justices that ranged from Ruth Bader
Ginsburg to Antonin Scalia. But the fact that its list of supporters is
unusual doesn’t mean it won’t present real problems for both liberals
and conservatives when it comes to democratic freedoms. Has the
initiative process in 26 states now been fatally undermined?

Chief
Justice Roberts’s opinion held that supporters of Proposition 8, which
52 percent of California voters used in 2008 to define marriage as
between only a man and a woman, lacked standing to defend the measure in
federal court after state officials refused to defend the law in court.
Supporters could fight for Prop 8 in California courts, the court said,
because California recognized their standing, but they can’t appeal in
federal court because they don’t have standing that meets federal rules.
Since a federal district court had previously ruled Proposition 8
unconstitutional, supporters of gay marriage claim the Supreme Court has
effectively made gay marriage the law in California.

Governor
Jerry Brown is already ordering clerks to issue marriage licenses to
gays in California, a bold step given that it’s unclear the federal
district court had the power to extend gay marriage to anyone other than
the specific people involved in the suit. But that’s for other courts
to sort out in a year or so; for now, Brown is trying to make a show of
force that he hopes courts won’t dare challenge.

In California, the initiative process was started in 1911
specifically to pass laws that the governor, other state officials, and
the legislature didn’t want to pass. As Justice Anthony Kennedy, who is
from California, points out in his dissent to the Roberts opinion: “The
initiative system ‘grew out of dissatisfaction with the then governing
public officials and a widespread belief that the people had lost
control of the political process.’”

Well, that belief will now reassert itself in the wake of Roberts’s opinion.

In
the case of Prop 8, Governor Brown, Democratic attorney general Kamala
Harris, and the Democratic legislature all refused to defend in court
the ban on gay marriage. That’s why the state supreme court unanimously
allowed the proponents of Prop 8 to defend it in court, a decision that
was ratified by the liberal federal Ninth Circuit Court of Appeals when
the Prop 8 case was heard there on its way to the Supreme Court.

Justice
Kennedy said during oral argument in the Prop 8 case last March that
not granting standing to the proponents of Prop 8 in federal court would
have dangerous implications, what he called “a one-way ratchet.” All
state officials have to do is refuse to defend a law passed by the
people, watch as those seeking to overturn the law go judge-shopping
(Prop 8 opponents found a gay judge in San Francisco who did not
disclose his sexual orientation), and then watch the proponents of the
initiative lose in federal court because they “lack standing” to
represent the law they wrote.

Justice Kennedy, in his dissent
from the majority, warned that “the Court’s decision also has
implications for the 26 other states that have an initiative or popular
referendum system, and which, like California, may choose to have
initiative proponents stand in for the State when public officials
decline to defend an initiative in litigation.” Kevin Drum, a blogger
for the liberal Mother Jones magazine, notes that he is in
favor of gay marriage, but that the Supreme Court’s “gutting” of the
people’s right to defend their own initiatives “has neither the flavor
of justice nor of democratic governance.”

Others are already raising the alarm. Bill Jurkovich, a voter in Citrus Heights, Calif., says:
“Apparently, we the people do not have the right to create a law that
the political elite disagree with. Is it any wonder that people are
becoming radicalized, have lost faith with the political process,
distrust government, and do not vote?” Indeed, the California supreme
court has in the past ruled
that “if the very officials the initiative process seeks to circumvent
are the only parties who can defend an enacted initiative when it is
challenged . . . this de facto veto will erode one of the cornerstones
of the State’s governmental structure.”

The California supreme
court went on to say: “In light of the frequency with which initiatives’
opponents resort to litigation” — over one-third of the initiatives
approved in Arizona, California, Colorado, Oregon, and Washington
between 1900 and 2008 were challenged in court – “the impact of that
veto could be substantial.”

John Eastman, a former dean of Chapman
University’s law school, says he believes people of all political
persuasions should worry about the “huge hole” Justice Roberts has blown
in the initiative process in order to sidestep ruling on the merits of
Proposition 8. “Someday, liberals could win an environmental-protection
measure in a state and see a conservative governor and attorney general
refuse to enforce or defend it,” he told me. “When that time comes, the
proponents may seek their day in federal court and find that there’s
only darkness because they lack any standing to defend their own law.”

The
threat to the initiative process in 26 states is real. Starting with
California, voters should quickly explore ways to craft some mechanism
that will allow proponents to defend initiatives in court if elected
officials refuse to do so. Sounds like a good subject for another
initiative — and if such a measure were to pass, elected officials would
probably be quite leery of trying to block it.

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About Me

A Texan who loves the truth and hates the lying, cheating, and deliberate prevarication that characterizes so much of our civic discourse these days.
++++++++++++++++++++++++++++++++
RIPOSTE, n. 1. Fencing: a quick thrust after parrying a lunge 2. a quick sharp return in speech or action; counterstroke.
- The Random House Dictionary of the English Language...........
You can contact me by sending an email to me at: leorugiens23@gmail.com